UNITED STATES COURTS IN INDIANA. 


VC 4 I 

^ V- " -■• 

C. KERR, 

OF USTDI^FT^, ' 

IN THE HOUSE OF REPRESENTATIVES, DECEMBER 22, 1869. 


SPEECH 

OF 

HON. MICHAEL 


The House being in the Committee of the Whole 
on the state of the Union— 

Mr. KERR said : 

Mr. Chairman : I have been directed by 
the Committee on the Judiciary, to whom was 
referred House bill No. 230, to report it back 
to the House with a recommendation that it 
pass. I beg the attention of the House while 
I briefly state the reasons which render proper 
and necessary the passage of this bill. 

In the State of Indiana, under existing laws, 
there are but two terms of the district and cir¬ 
cuit courts of the United States held each year, 
and they are both held at the capital. Indiana 
is the fifth State in popular and representative 
strength in the Union ; yet there are but Jive 
States in the Union whose Federal court facili¬ 
ties are not greater and whose terms of such 
courts are not more numerous, and whose judi¬ 
cial machinery is not more complete than those 
of Indiana, and in each of those States they 
have just the same extent of Federal judicial 
facilities that Indiana enjoys. Those five States 
are Delaware, Kansas, Louisiana, Maryland, 
and Minnesota, and the aggregate representa¬ 
tion of those States in this House is but thir¬ 
teen, while that of Indiana alone is eleven. 
Every other State enjoys greatly superior judi¬ 
cial advantages over Indiana. The extent of 
the State in area, in wealth, in population, in 
commerce, in admiralty and maritime business, 
and in all the elements of prosperity and power 
entitle it to a great enlargement of these advan¬ 
tages. 

I have prepared for the more specific inform¬ 
ation of the House, a careful table showing the 
extent and organization of the judicial system 
of the United States in the different States of 
the Union. It is compiled from the different 
statutes now in force for the organization of 
;ourts, and is believed to be absolutely correct. 
It indicates very forcibly and clearly the sin¬ 


gular insufficiency of our facilities in Indiana 
and the very remarkable inequality which in 
this respect exists between it and all the other 
States. The committee very justly conclude 
that this condition demands a speedy remedy 
and that this bill ought to pass. The table is 
as follows: 


States. 

Districts. 

Judges. 

District court 
terms. 

Circuit court 
terms. 

Representa¬ 

tives. 

Alabama. 

3 

1 

6 

3 

6 

Arkansas. 

2 

1 

4 

2 

3 

California. 

1 

1 

2 

6 

3 

Connecticut. 

1 

1 

4 

2 

4 

Delaware. 

1 

1 

2 

2 

1 

Florida. 

2 

2 

5 

5 

1 

Georgia. 

2 

1 

6 

2 

7 

Illinois. 

2 

2 

6 

4 

14 

Indiana. 

1 

1 

2 

2 

11 

Iowa. 

1 

1 

6 

2 

6 

Kansas. 

1 

1 

2 

2 

1 

Kentucky. 

1 

1 

8 

8 

9 

Louisiana. 

1 

1 

2 

2 

5 

Maine. 

1 

1 

4 

2 

5 

Maryland. 

1 

1 

2 

2 

5 

Massachusetts. 

1 

1 

4 

2 

10 

Michigan. 

2 

1 

5 

5 

6 

Minnesota. 

J. 

1 

2 

2 

2 

Mississippi. 

2 

1 

4 

2 

5 

Missouri. 

2 

2 

5 

2 

9 

IN evada. 

1 

1 

3 

3 

1 

New Jersey. 

1 

1 

4 

2 

5 

New Hampshire. 

1 

1 

4 

2 

3 

New York. 

3 

3 

34 

26 

31 

North Carolina. 

1 

1 

6 

2 

7 

Ohio. 

2 

2 

6 

6 

19 

Oregon. 

1 

1 

3 

3 

1 

Pennsylvania. 

2 

2 

0 

8 

24 

Rhode Island. 

1 

1 

14 

2 

2 

South Carolina. 

1 

1 

5 

2 

4 

Teniiessee. 

3 

1 

6 

6 

8 

Texas. 

2 

1 

8 

8 

4 

Vermont. 

1 

1 

3 

3 

3 

Virginia...... 

1 

1 

8 

2 

7 

West Virginia. 

1 

1 

6 

2 

3 

Wisconsin. 

1 

1 

3 

3 

6 





























































The insufficiency of Federal judicial facilities 
in Indiana may be made still more impressive 
by a brief reference to a few recent events. 
Our complicated systems of internal revenue 
taxation and bankruptcy, with their numerous 
fines, penalties, forfeitures, and punishments 
are of recent origin, and all seek judicial con¬ 
struction and enforcement in the courts of the 
United States. To them have been from time 
to time added many laws of Congress for the in¬ 
demnification of certain classes of persons from 
punishment for certain offenses and wrongs 
committed during the war under color of au¬ 
thority. All such laws tend to increase the 
jurisdiction of the sam^e courts. The numerous 
cases arising under them are taken out of the 
State courts by transfer upon petition or writ of 
error or mandate. The business of the same 
courts has been further very greatly extended 
and complicated by recent decisions of the 
Supreme Court of the United States touching 
their admiralty and maritime jurisdiction. 

This new jurisdiction is the result of no re- 
centleglslation, unless \ihe judicial legislation. 
It is declared by the highest judicial tribunal 
in the land to exist and to be absolutely exclu¬ 
sive in the Federal courts. It vitally affects 
in an exceedingly important and somewhat 
local sense the great interests of commerce as 
carried on by the aid of the important natural 
highways of the West. It affects some of the 
most important interests of my own immediate 
section and constituents. The entire southern 
border of Indiana is washed by the Ohio river. 
Upon its banks are several of the most enter¬ 
prising and prosperous cities in the State. Two 
of these are in the district I have the honor to 
represent, one just above and the other below 
the falls of the Ohio. The material interests 
and commerce of the people of southern Indi¬ 
ana, and especially from the falls of the Ohio 
westward and sout hward, are very largely con¬ 
nected with that river. Our mechanics, who 
are equal in intelligence, enterprise, and skill 
to any in the country, are largely engaged in 
the construction of steamboats and water-craft 
of all kinds, including the floating palaces that 
traverse the wmters of all the navigable rivers 
of the West and South. » Other and not less 
meritorious classes are engaged in the practical 
management of all such vessels as common 
carriers of persons and property, contributing 
very greatly by their capital, enterprise, and 
intelligence to develop the material resources, 
enlarge the commerce, and hasten the general 
progress of the country. 

Out of the extensive and diversified business 
thus more or less directly connected with the 
Ohio river innumerable and important con¬ 
tracts and controversies arise, many of which 
become the subjects of litigation. Heretofore 
nearly all such litigation has found convenient 
tribunals and speedy settlement in the courts 
of the States. But now all such contracts and 


controversies as are proper matters of admi¬ 
ralty jurisdiction under late decisions of the 
Supreme Court can only be litigated in the 
Federal courts. Jurisdiction over them is de¬ 
nied to the State courts and held to be abso¬ 
lutely exclusive in the district courts of the 
United States. Thus great numbers of suitors 
are driven from the local courts to seek reme¬ 
dies in remote Federal courts, or to give up all 
remedy and suffer injustice. The Constitution 
declares— 

“ The judicial power shall entend” * * * 

* " to all cases of admiralty and maritime jurisdic¬ 

tion.” 

The judiciary act of 1789 declares that— 

‘‘The distinct courts shall have, exclusively of the 
courts of the several States,” * * * * 

‘‘ cognizance of all civil causes of admiralty and mari¬ 
time jurisdiction.” 

It will not be inappropriate here to inquire 
briefly what is meant by the expression, “ ad- 
mirality and maritime jurisdiction.” In its 
most general sense it refers to that kind of 
j urisdiction which at the common law was exer¬ 
cised by certain courts over torts, contracts, 
and offenses which arose or were committed 
upon the high seas within the ebb and flow of 
the tides and outside the body of any county. 
It embraced the torts, contracts, and crimes 
which are necessarily connected with and arise 
out of that kind of business and commerce which 
is transacted upon the water and lacks the ele¬ 
ment of exclusive locality upon land, and there¬ 
fore, by reason of their very nature, could not 
be assigned for adjudication to the courts within 
any prescribed territorial limits. Hence, fol¬ 
lowing the analogies of the common law the 
framers of our Constitution considered it 
proper to commit the regulation of this kind 
of jurisdiction to Congress. It was no doubt 
ititended thereby merely to confer upon Con¬ 
gress the power to regulate and protect those 
interests of the citizens of the country gen¬ 
erally which are in their origin external, and 
therefore not susceptible of local regulation 
and control by the States. 

In the spirit of these views the Supreme Court 
of the United States, in the cases decided by 
it prior to 1851, held that it had no jurisdic¬ 
tion over cases of the kind mentioned if they 
arose above the ebb and flow of the tides. 
These decisions, therefore, left to the exclusive 
control and regulation of the States the vast 
interests of their citizens in connection with 
the very extensive commerce carried on upon 
the inland waters of the country. There soon 
grew up in all the States whose citizens were to 
any extent engaged in such commerce, and 
particularly in all the States of the West and 
South, extensive and well adapted systems of 
law and practice for the protection of the inter¬ 
ests and adjudication of the rights of their citi¬ 
zens arising out of that commerce. The ex¬ 
tent of these interests and of the controversies 










and litigation arising out of them can only be 
fully realized by a careful contemplation of the 
vast increase of inland navigation resulting from 
the use of steamboats and the rapid develop¬ 
ment of wealth on the borders of the rivers. 

Butin 1851, in the case of the Genesee Chief, 
(12 Howard R., 457,) all of the previous de¬ 
cisions limiting the admiralty jurisdiction of 
the Federal courts to tide-water were overruled 
by the same court, and the broad doctrine 
declared that that jurisdiction extends where- 
ever ships float and navigation successfully aids 
commerce, whether internal or external. That 
case arose out of a collision between two ves¬ 
sels on Lake Ontario. Its doctrine has been 
many times affirmed by the same court in sub¬ 
sequent cases. In some cases this jurisdiction 
has been exercised by Federal courts in the 
avowed execution of State statutes, and not 
under any claim of a general common-law 
power in these courts to such a jurisdiction. 

It was not, however, in any of the cases 
prior to 1866, decided by the Supreme Court 
that the jurisdiction of the district courts in 
admiralty and maritime cases arising on our 
inland rivers was exclusive of the jurisdiction 
hitherto constantly claimed and exercised by 
the State courts. On the contrary, it was either 
not denied or it was in terms conceded that the 
jurisdiction of the State courts over all such 
cases was concurrent with that of the district 
courts of the United States. The State courts 
along our western rivers have, therefore, con¬ 
tinued to exercise uninterrupted, if not unques¬ 
tioned, jurisdiction in such matters. Being 
always conveniently accessible to suitors en¬ 
gaged in such commerce, they have afforded 
more prompt and satisfactory remedies than 
more remote Federal courts could do. I can¬ 
not persuade myself that the denial of their 
jurisdiction is not a great public misfortune to 
the people of the country, whether that denial 
be legal or illegal. Their jurisdiction has been 
acquiesced in and approved for more than half 
a century, and the beneficent results of its 
exercise greatly promoted the prosperity and 
haiq)iness of the people. 

But it is now denied and declared never to 
have had any legal existence. By a sweeping 
edict of superior judicial power and construc¬ 
tion it is absolutely annulled and destroyed. 
In the cases of the Moses Taylor, iVotn Cali¬ 
fornia, and The Hine vs. Trevor, from Iowa, 
the Supreme Court of the United States, in 
December, 1860, decided that— 

“1, The admiralty jurisdiction to which tbepower 
of the Federal judiciary is, by the Constitution, de¬ 
clared to extend is not limited to tide-water. Ltd 
covers the entire navigable waters of the Un ited Slates. 

“2. The original jurisdiction in admiralty exer¬ 
cised by the district courts by virtue of the act of 
1789 is exclusive not only of other Federal courts, but 
of the Slate courts also. 

“3. And that, therefore. State statutes relating to 
western inland rivers which attempt to confer upon 
State courts a remedy for marine torts and marine 


contracts by proceedings strictly in rem. are Ivoid, 
because they are in conflict with that act of Con¬ 
gress.”—4 Wallace Jieports, pp. 411, 555. 

Mr. Chairman, it will be readily seen and 
appreciated by the House to what a radical 
extent the jurisdiction of the State courts has 
been divested and that of the Federal courts 
extended and enlarged by the course of decis¬ 
ions to which I have referred. It will also be 
seen how important it is to the interests of the 
people that Congress shall give thought to the 
duties imposed upon it by these great changes. 
The immediate increase of the Federal courts 
in the vicinity of the great water highways of 
the West is demanded, if not made imperative, 
by them in order to accommodate the new juris¬ 
diction and business of those courts, most.of 
which will arise out of the commerce on those 
highways. That business will always be essen¬ 
tially local in its origin, and it will be impos¬ 
ing onerous and unjust hardships upon the 
classes interested in it to require them to seek 
their remedies in remote courts holding their, 
sessions at points in the States distant from 
the great water-courses. 

It is important in another view that these 
courts shall be speedily increased. The inevi¬ 
table effect of the decisions cited by me is to 
open a wide field for judicial disagreements 
and conflicting constructions between the Fed¬ 
eral and the State courts as to what particular 
cases and classes of cases belong to admiralty 
and maritime jurisdiction, and must therefore 
be tried in the Federal courts. It is safe to 
assume that fifty years of judicial decision and 
interpretation will not suffice to fully define 
the boundaries between the two jurisdictions. 
The citizens of the States will naturally prefer, 
as being the cheapest and most convenient, 
to go into their domestic courts for redress. 
Opposing litigants will quite as naturally seek 
to defeat the jurisdiction of those courts in 
order to secure delay and other advantages, 
real or supposed. Ifit werepraciicable, there¬ 
fore, it is certainly desirable that the Federal 
courts should be made as accessible to the 
people as the local courts are. 

It may be inquired why these two courts 
should both be located on the southern border 
of the State. It is because by reason of t heir 
respective locations, their remoteness from 
each other—nearly two hundred miles by the 
river—andtheir size, importance, rapid growth, 
and future prospects, the cities of New Albany 
and Evansville are and will always conlinueto 
be the chief commercial centers for the water- 
carried commerce of the State, out of which 
can grow extensive litigation subject alone to 
admiralty and maritime jurisdiction, and which 
must therefore be adjudicated by Federal courts, 
it is true Indiana has a short water boundary 
on the north, the commercial center of which 
is Michigan City, and from the business trans¬ 
acted on Lake Michigan there may arise some 











causes cognizable in admiralty, but not many. 
But if such causes were ever so numerous 
the situation would not be thereby materially 
changed nor the demand for the passage of this 
bill in any degree reduced, because the act of 
Congress of February 26, 1845, as to all such 
causes not only saves to parties the right of 
any concurrent remedy at common law, but 
also the right of trial by jury of all facts put in 
issue if either party require it, and any con¬ 
current remedy given by the laws of the State. 
In other words, that act amounts to a limita¬ 
tion of the powers granted by the act of 1789, 
as to cases arising upon the lakes and naviga¬ 
ble waters connecting the lakes. (The Hine 
vs. Trevor, 4 Wallace’s R., 655.) 

If, therefore, a cause cognizable in admiralty 
arise on the lake boundary in Indiana, the 
party interested may institute his action in the 
State court and avail himself of the remedy 
provided by the State law, and on the trial of 
any facts put in issue demand and have the 
benefit of a jury; but in such causes arising 


on the river boundary of the State none of 
these privileges can be enjoyed. The jurisdic¬ 
tion of the Federal courts is there absolutely 
exclusive, and the right of trial by jury is 
denied in all such cases. These facts develop 
a singular anomaly in our distribution of Fed¬ 
eral jurisdiction which demands a remedy. 
But so the matter now stands, and hence in 
great part the present and imperative necessity 
for the passage of this bill. 

By this bill it is neither proposed to create 
an additional district in Indiana nor to require 
the appointment of any additional oflScers ex¬ 
cept two clerks or deputy clerks, to be paid by 
fees only, nor to impose upon the Government 
any additional expense except only the incon¬ 
siderable expense incident to holding the ad¬ 
ditional terms. Since the United States has 
become by the late immense extension of its 
powers and jurisdiction a local as well as a 
general Government, these have become indis¬ 
pensable, if not inevitable. The bill ought to 
pass without objection. 


Printed at the Congressional Globe Office. 













